The Legislative and Regulatory Context

Salamanca Statement (1994)

Like most countries Wales supports the Salamanca Statement drawn up by the UNESCO world conference in 1994.  It called on governments to “adopt as a matter of law or policy the principle of inclusive education, enrolling all children in regular schools unless there are compelling reasons for doing otherwise”.

Human Rights

The Welsh Assembly Government (WAG) set out its vision for children and young people in Children and Young People: Rights to Action (2004).  The vision is based on the UN Convention on the Rights of the Child and has seven core aims:

These seek to ensure that all children and young people :

 Educational achievement is seen as a crucial contributor to this vision and the Assembly seeks to support all learners but makes special reference to those who are disengaged or disadvantaged and the need to enable them to access learning and enjoy equality of opportunity (Stronger Partnerships for Better Outcomes, 2004).

Local Authorities, schools and the police in Wales are also bound by the Human Rights Act  (HRA), 1998, which incorporated provisions from the European convention on Human Rights into UK law.  They must apply their powers fairly and consistently, having regard to WAG guidance and inconsistency or unfairness may lead to challenges under the HRA.


Equal Opportunities

The development of equality of opportunity has been a gradual process in the UK which has come to mean it is illegal to discriminate in this country against any individual or group on the basis of gender, marital or family status, sexual orientation, religious beliefs, race, age and/or disability.  Furthermore new legislation also puts a duty on public authorities such as local authorities, schools, police and NHS Trusts to promote equality of opportunity and eliminate unlawful discrimination.

In October 2007 the duties imposed on public authorities with regard to disability, race and gender will be enforceable by a new body, the Commission for Equality and Human Rights (CEHR).   The new body will deal with the other areas of equality, including age, religion and belief, and sexual orientation as well.  It will also promote awareness and understanding of human rights and encourage good practice by public authorities in meeting their Human Rights Act obligations.

Disability

The Special Educational Needs and Disability Act, 2001 amended the Disability Discrimination Act, 1995 and delivered comprehensive enforceable civil rights for disabled pupils and students.

It is now unlawful for schools or local authorities, without justification, to discriminate against disabled pupils and prospective pupils for a reason related to their disability in the provision of education and associated services.  Discrimination means treating disabled pupils less favourably than other pupils without justification and failing to take reasonable steps to ensure they are not put at a substantial disadvantage.

The Disability Discrimination Act, 2005 (DDA, 2005) places a duty on public bodies including schools and the local authority, to promote equality of opportunity for disabled people.  It is also illegal for public bodies to treat disabled people less favourably in the exercise of their functions and they must make reasonable adjustments, such as improving access, to enable disabled people to make use of their services.

Under the DDA, 2005 schools are required to produce a Disability Equality Scheme by April 2007 and local authorities were required to produce schemes by December 2005.  Further information can be found on www.dotheduty.org.

The Disability Rights Commission (DRC) has also produced a Code of Practice for Schools and developed a Code of Conduct for public bodies on how to meet their new duties which can be obtained from the Commission for Equality and Human Rights website at www.equalityhumanrights.com.

Race Equality

The Race Relations Act (1976) (Amended 2000) places a duty on public authorities, including local authorities, schools and the police, to eliminate unlawful racial discrimination and promote equality of opportunity and good relations between people of different racial groups.

The Race Relations (Statutory Duties) Order 2001 also places a duty on puplic bodies to assess the impact of their policies on minority groups and monitor the operation of those policies by ethnicity.  Local Authorities and schools should therefore monitor the application of their powers to ensure that there is no underlying bias which would lead to disproportionate, unequal or unfair treatment on account of ethnicity.  For example schools and local authorities should consider the reasons behind differences in pupil achievement or disproportionate numbers of black or ethnic minority pupils excluded from school.

The Commission for Racial Equality CRE) has issued a Statutory Code of Practice which out lines what educational establishments must do to fulfil their duties.  The Code of Practice points to requirements under the Race Relations Act (1976) (Amended 2000) for schools to:

Further information is available on the Commission for Equality and Human Rights home page: www.equalityhumanrights.com.

Gender Equality

In 1975 the Sex Discrimination Act was introduced and for the first time, discrimination on the grounds of sex became unlawful.

The Gender Equality Duty [GED] is a legal obligation which came into force in April 2007.  It was introduced under the Equality Act 2006, which amended the Sex Discrimination Act 1975.  The GED requires public authorities including governing bodies and local authorities to promote gender equality and eliminate sex discrimination.  Instead of depending on individuals making complaints about sex discrimination, the duty places the legal responsibility on public authorities to demonstrate that they treat men and women fairly.  The duty will affect policy making, public services, such as transport, and employment practices such as recruitment and flexible working. 

The Welsh specific duties will not be finalised before April 2008 at the earliest.  Until they have been developed, EOC Wales and the Welsh Assembly Government are advising public authorities in Wales to:

More information is available from the Commission for Equality and Human Rights [CEHR] which took over the duties of the CRE, DRC and EOC in October 2007 (www.equalityhumanrights.com).

Learning Country

The Learning Country (2001) set out the Assembly’s vision for how it intended to secure the best learning experiences for learners of all ages.  This Paving Document recognised that identifying and overcoming barriers to learning was a crucial principle if learners were to gain access to the full range of opportunities available to them.

The Learning Country is supported by appropriate age-based inclusive curricula.  The Flying Start programme aims to target the needs of young children and their parents living in disadvantaged communities by providing dedicated health, education and childcare support.

The Foundation Phase for children aged 3 to 7 focuses on meeting the developmental needs of all children.  It provides a curriculum and specific experiences that emphasises practical indoor and outdoor activities that challenge, motivate and develop children’s curiosity as well as develop their knowledge, skills and independence.

The Learning Pathways 14 to 19 (2004) document set out how young people should be able to have an individually tailored learning pathway which met their needs and aspirations.   An important principle was that different pathways should have parity of esteem.

The Learning Country also recognised the need to have high standards and expectations, together with progressive improvements in outcomes for all learners as an important part of the process of inclusion.  The Education Act 2002 also required governing bodies to conduct a school with a view to promoting high standards of educational achievement and the same duty applies to local authorities under the School Standards and Framework Act, 1998.

Partnerships

Local partnerships are a seen by the Assembly as a vital mechanism for improving the quality and quantity of services in Wales as set out in Making The Connections: Delivering Better Services for Wales (2004).  With regard to children ad young people The Children Act 2004 set out a new statutory basis for partnership working by placing a duty on local authorities in Wales and a range of partners to improve the well being of children and young people in each local authority area.  These statutory duties came into effect from 1 September 2006 (Stronger Partnerships for Better Outcomes, Circular 35/2006).

A requirement for an overarching Children and Young People Plans will come into effect in 2008 and is designed to secure co-ordinated strategic planning and delivery of all services for children and young people.

Additional Learning Needs

The Welsh Assembly Government has adopted the wider term Additional Learning Needs to encompass all children and young people with learning needs which are greater than those of the majority of their peers.  The National Assembly for Wales circular Inclusion and Pupil Support (2006) lists a number of groups such as children who are looked after, children from families in difficult circumstances and young carers who may be more likely to have additional learning needs. 

Special Educational Needs

Pupils who have special educational needs are included as one of the categories of additional learning need.

However,  the term special educational needs (SEN) also continues to identify those learners who have severe, complex and/or specific learning difficulties as set out in the Education Act 1996 and Special Educational Needs (SEN) Code of Practice for Wales (2002).  This legislation puts certain duties on local authorities and school governing bodies to promote high standards of education for all children including those with SEN and make effective arrangements for SEN by ensuring:

The Code of Practice also takes into account the strengthened right to a mainstream education for children and young people with SEN and suggests the LEA’s planning should provide for the inclusion of children with SEN in mainstream schools.


Child Welfare

The Children Act 1989 and the Children Act 2004 place a duty on designated bodies including local authorities to safeguard and promote the welfare of children and young people.  Safeguarding Children: Working Together under the Children Act 2004 provides guidance to designated bodies about how to work together to promote and safeguard children and young people’s welfare. More specific guidance about the responsibilities of local authorities, governing bodies, proprietors of independent schools, head teachers, and staff with designated responsibility for child protection is provided by the supplement Safeguarding Children in Education (2008).   The  All Wales Child Protection Procedures, 2008,  provides specific procedures for all individuals working with children and their families and Local Safeguarding Children Boards on their specific function to protect individual children from abuse and neglect.

Welsh Language Act 1993

The Welsh Language Act 1993 obliges local authorities to treat the Welsh and English languages on the basis of equality and to apply this principle to the services they provide to the public.  In relation to Inclusion this means: